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Rushton v. Berryhill

United States District Court, D. South Carolina, Anderson/Greenwood Division

August 29, 2018

Karen Ann Rushton, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER AND OPINION

          A. MARVIN QUATTLEBAUM, JR., UNITED STATES DISTRICT JUDGE

         This is a Social Security appeal brought pursuant to 42 U.S.C. § 405(g) in which Plaintiff Karen Ann Rushton (“Plaintiff”) seeks judicial review of the final decision of the Acting Commissioner of Social Security (“Commissioner”) denying her claim for disability insurance benefits (“DIB”). In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 D.S.C., this matter was referred to a United States Magistrate Judge for pre-trial handling. The Magistrate Judge issued a Report and Recommendation (“Report”) on June 8, 2018, recommending that the Commissioner's decision be reversed pursuant to Sentence Four of 42 U.S.C. § 405(g) and remanded to the Commissioner for further administrative action. (ECF No. 16.) The Commissioner filed Objections to the Report (“Objections”) on June 22, 2018 (ECF No. 17), and Plaintiff filed a Reply on July 6, 2018. (ECF No. 18.) The Court has reviewed Commissioner's Objections, but, in light of the record, overrules them. Therefore, the Court adopts the Report of the Magistrate Judge and reverses and remands this matter, as further explained below.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The Report sets forth in detail the relevant facts and standards of law on this matter, and the Court incorporates them and summarizes below in relevant part. Plaintiff filed an application for DIB benefits on June 3, 2014. (Tr. at 19.) Plaintiff alleges a disability onset date of May 20, 2014. (Tr. at 19.) The application was denied initially and upon reconsideration by the Social Security Administration. (Tr. at 19.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) on August 11, 2014. (Tr. at 19.) The ALJ heard testimony before Plaintiff at a hearing on April 7, 2016. (Tr. at 19.) On May 11, 2016, the ALJ issued a ruling and found that Plaintiff was not under a disability as defined by the Social Security Act. (Tr. at 16-28.) The Social Security Appeals Council denied Plaintiff's request for review (Tr. at 1), making the ALJ's decision the final decision of the Commissioner. Plaintiff filed an action in this Court on March 31, 2017. (ECF No. 1.)

         II. REPORT AND RECOMMENDATION

         The Magistrate Judge recommends that the Commissioner's final decision be reversed pursuant to Sentence Four of 42 U.S.C. § 405(g) and remanded to the Commissioner for re-evaluation of the evidence and for any further proceedings deemed necessary. (ECF No. 16 at 21.) The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1). “However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. While the level of scrutiny entailed by the Court's review of the Report thus depends on whether or not objections have been filed, in either case the Court is free, after review, to accept, reject, or modify any of the magistrate judge's findings or recommendations.” Wallace v. Housing Auth. of the City of Columbia, 791 F.Supp. 137, 138 (D.S.C. 1992) (internal citations omitted).

         In the Report, after setting forth the relevant facts and background, parties' positions, and the applicable law, the Magistrate Judge gave specific attention to the ALJ's consideration of Plaintiff's moderate difficulties in light of the Fourth Circuit's opinion in Mascio v Colvin, 780 F.3d 632 (4th Cir. 2015). (ECF No. 16 at 16.) The Magistrate Judge acknowledged the ALJ's finding that Plaintiff had moderate limitations in concentration, persistence or pace. (ECF No. 16 at 18.) The Magistrate Judge noted that the ALJ concluded that the Residual Functional Capacity (“RFC”) accounted for Plaintiff's mental impairments by restricting the pace and skill of her work, as well as her interactions with public. (ECF No. 16 at 18.) As part of the RFC, the ALJ determined that Plaintiff “can perform simple, routine tasks for two hour blocks of time with normal rest breaks during an eight hour work day; and occasional interaction with the public.” (ECF No. 16 at 2.) The Magistrate Judge concluded, however, that the ALJ failed to explain how a limitation to simple, routine tasks for two hour blocks of time with normal rest breaks addresses Plaintiff's moderate difficulties in concentration, persistence and pace. (ECF No. 16 at 18.)

         For that reason, the Magistrate Judge determined that further explanation and/or consideration is needed from the ALJ to explain how Plaintiff's moderate limitations in concentration, persistence or pace does or does not translate into a limitation in Plaintiff's RFC and/or a limitation in the hypothetical to the Vocational Expert (“VE”). (ECF No. 16 at 19.) Accordingly, the Magistrate Judge was unable to make a recommendation to this Court that that ALJ's RFC determination is supported by substantial evidence. (ECF No. 16 at 19.) The Magistrate Judge, therefore, recommends that the Commissioner's decision be reversed pursuant to Sentence Four of 42 U.S.C. § 405(g), and remanded to the Commissioner for further administrative action, including consideration of Plaintiff's remaining allegations of error. (ECF No. 16 at 20.)

         III. PARTIES' RESPONSE

         The Commissioner filed Objections to the Report on June 22, 2018, contending that there is substantial evidence for the ALJ's decision, and that the ALJ adequately explained his analysis of the relevant medical evidence. (ECF No. 17 at 1.) The Commissioner argues that the ALJ's RFC assessment reasonably accounted for Plaintiff's credibly established limitations in concentration, persistence or pace by requiring her to: (1) avoid all work place hazards; (2) perform simple routine tasks for two hour blocks of time with normal rest breaks, during an eight-hour work day; and (3) interact with the public on no more than an occasional basis. (ECF No. 17 at 2.) The Commissioner argues that the ALJ's RFC assessment contains relevant language which demonstrates the ALJ's consideration of Plaintiff's degree of limitation and mental impairments in restricting the pace and skill of her work. (ECF No. 17 at 5.) The Commissioner concludes that Mascio does not present a basis for remand here because the Magistrate Judge errs in her reliance on “precedent that does not include any RFC limitation addressing time-on-task, ” and further errs by finding fault with the ALJ's explanation of his findings. (ECF No. 17 at 10.) The Commissioner thus asks this Court to affirm the final decision and sustain her Objections to the Report.

         Plaintiff filed a Reply to the Commissioner's Objections, reiterating her argument that the ALJ's RFC assessment fails to account for time off-task during the workday and arguing that remand under Mascio is warranted in this case. (ECF No. 18 at 2.)

         IV. DISCUSSION OF THE LAW

         A. STANDARD OF REVIEW

         The role of the federal judiciary in the administrative scheme established by the Social Security Act is a limited one. Under 42 U.S.C. § 405(g), the court may only review whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . .”); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). “Substantial evidence has been defined innumerable times as more than a scintilla, but less than preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964); see, e.g., Daniel v. Gardner, 404 F.2d 889 (4th Cir. 1968); Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966). This standard precludes de novo review of the factual circumstances that substitutes the Court's findings of fact for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. ...


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